Tag Archives: Executive Order

President Trump Orders Immediate Freeze on Pending Regulations

Contributed by Carlos Arévalo, January 26, 2017

18108277_sOn January 20, 2017 shortly after taking office, newly sworn in President Donald Trump directed White House Chief of Staff Reince Priebus to issue a memorandum to the heads of executive departments and agencies directing them not to send any regulations to the Federal Registry until further notice, to withdraw any proposed regulations that have not been published and to postpone for 60 days the effective dates of regulations that have been published by the Officer of the Federal Register. As stated in Priebus’ memorandum, the purpose is to ensure the President’s appointees or designees “have the opportunity to review any new or pending regulations” and to consider “questions of fact, law, and policy that [such regulations] raise.”

With the change in administrations, this is not a surprising action. In fact, former President Barack Obama took a similar action in January 2009, at the beginning of his first term, by effectively freezing regulations that were pending from the former President George W. Bush’s administration.

What Does This Mean for Employers?

This means that any proposed or pending regulations are now facing uncertainty as to whether they will go forward, be overhauled or discarded. The most prominent pending regulations that this could impact is the Department of Labor (DOL) Final Overtime Rule. While the Final Overtime Rule was set to go into effect December 1, 2016, it was blocked from taking effect by United States District Court Judge Amos Mazzant in his November 22, 2016 ruling. Since the Final Overtime Rule did not go into effect the freeze on regulations could impact the Final Overtime Rule. However, it is likely that in order to repeal or reverse the Final Overtime Rule or any other regulations that have been finalized, President Trump would need an act of Congress or have the federal department or agency propose and enact a new regulation to replace the current one. Alternatively, since the DOL has appealed Judge Mazzant’s decision and pursued an expedited briefing schedule on December 1, 2016, President Trump could direct the DOL to abandon or withdraw the appeal. Thus, until the Fifth Circuit Appellate Court issues a decision on the appeal, or until such time as the President or DOL take action on the Final Overtime Rule, our recommendation, just as we suggested last November 2016 in response to the District Court granting an injunction on the DOL Final Overtime Rule, is that no action be taken until the issue is resolved.

With respect to other regulations, just like we stated with respect to President Trump’s executive order regarding the Affordable Care Act, it is too early to tell how or when employers will be impacted and what the new administration will ultimately do with respect to different regulations enacted during President Obama’s administration and regulations that impact businesses.

For our part, we will continue to monitor developments and provide additional information as it becomes available.

President Signs Executive Order on the Affordable Care Act

Contributed by Kelly Haab-Tallitsch, January 23, 2017

56033703 - words affordable care act  aca written on a paper.Shortly following his inauguration on Friday, President Trump signed an Executive Order affirming his intent to eliminate the Affordable Care Act (ACA). The executive order is not a repeal of the ACA and does not make any changes to the law or regulations thereunder, but rather addresses the actions of federal agencies in enforcing the existing law. The executive order directs the agencies responsible for overseeing ACA enforcement (Health and Human Services, Treasury Department, and Department of Labor) to, “take all actions consistent with the law to minimize the unwarranted economic and regulatory burden of the act” and “prepare to afford the States more flexibility and control to create a more open healthcare market.”

Specifically, the executive order directs the agencies to exercise the maximum discretion and authority available to them under the law to waive, defer, grant exemptions from or delay implementation of any provision of the ACA that imposes a cost, fee, tax or penalty.  It is unclear exactly how much discretion the agencies have with respect to many ACA provisions; however, this is a clear message that they have been instructed to identify ways to lessen the law’s impact during the interim period as lawmakers work towards an appeal.

What Does This Mean for Employers?

It’s too early to tell how or when employers will be impacted. The executive order did not actually change anything, but rather signaled the intent to make changes. Until further guidance is issued by the federal agencies, employers should continue compliance with all applicable ACA provisions. While the Trump administration appears committed to swift action on the ACA, we would not expect further information until the new heads of Health and Human Services, Treasury Department and the Department of Labor are in place.

We will continue to monitor developments on the ACA and provide additional information as it becomes available.

The Final Rule on LGBT Equality in Federal Contracts is Here

Contributed by Steven Jados

Back in July, we told you that President Obama signed Executive Order 13672, which directed the Department of Labor to expand the Equal Employment Opportunity requirements for certain federal contracts so as to prohibit discrimination by contractors based on sexual orientation or gender identity.

Taking the cue from that Executive Order, on December 3, 2014, the Department of Labor issued its Final Rule implementing the Executive Order.  The Final Rule will take effect on April 8, 2015.

A central component of the Final Rule is its directive that covered contracts and subcontracts, as well as policy, notice, and affirmative action plan documents, must be re-drafted so that where those documents formerly stated “sex, or national origin,” they must now state, “sex, sexual orientation, gender identity, or national origin.”  Notably, the Final Rule does not define sexual orientation or gender identity, which means the definitions of those terms will likely be taken from judicial decisions and agency guidance—much of which has developed under various states’ laws.

Federal contractors should recognize that the Final Rule does not require contractors to collect information about applicants’ or employees’ sexual orientations or gender identities.  In that same vein, the new Final Rule does not require employers to undertake any data analysis based on applicants’ or employees’ sexual orientations or gender identities.  However, nothing in the Final Rule, itself, prohibits asking applicants or employees to identify their sexual orientation or gender identity.  That said, state and local laws may prevent such questioning, and we generally advise against asking employees and especially applicants to identify their membership in protected classes as doing so may make discrimination claims more difficult to defend.

The requirements of the Final Rule will apply only to contracts that are entered into or modified after the effective date of the Final Rule.  Contracts entered into prior to April 8, 2015, and which are not modified after that date, are not required to include the sexual orientation and gender identity language.

But this is more than just a paper change.  To the extent federal contractors had not already done so, they must now train their managers to recognize and properly address potential instances or complaints of sexual orientation or gender identity-based discrimination.  Additionally, all employees of covered federal contractors and applicable subcontractors must be clearly advised that discrimination and harassment based on sexual orientation or gender identity is prohibited, and that there are complaint mechanisms in place in the event discrimination or harassment occurs.

The federal government has made a clear commitment to LGBT equality in employment under federal contracts, so federal contractors and subcontractors would do well to make efforts to transition seamlessly to compliance with the Final Rule’s sexual orientation and gender identity EEO requirements.

LGBT Workplace Equality is Now!

Contributed by Heather Bailey

“Equality in the workplace is not only the right thing to do, it turns out to be good business.”  – U.S. President Barack Obama, July 21, 2014

On July 21, 2014, President Obama – in allegiance to his commitment to the LGBT community – signed an Executive Order that amends Executive Order 11246 giving workplace protections to those applicants and employees seeking work from federal contractors and subcontractors by specifically prohibiting contractor discrimination based upon not only a person’s sexual orientation, but now their gender identity too.  Unlike the Hobby Lobby decision, religious affiliated contractors do not get any exemption to refuse employment to or otherwise discriminate against individuals based upon their sexual orientation or gender identity just because it may not confirm with the organization’s religious beliefs.

It is important to keep in mind that many employers – federal contractor or not – are still prohibited from discriminating against or harassing any applicant or employee because of his or her sexual orientation or gender identity.  The EEOC has already expressed that such protections are already imbedded in Title VII of the 1964 Civil Rights Act, while many state, city and locality laws have already marched ahead and specifically prohibit the same (e.g., IL, City of Chicago, CA, CO and WI (which addresses sexual orientation only)).  Now is the time to confirm your equal employment opportunity and anti-harassment and non-discrimination policies are up-to-date.

Lastly, many employers may even be unaware that they are covered by this Executive Order and should be following it.  Generally, if you are a business or organization that has either a single federal contract, subcontract, or federally assisted construction contract in excess of $10,000 or combined contracts that total in excess of $10,000 in any 12-month period, or you have government bills of lading, serve as a depository of federal funds, or are an issuing and paying agency for U.S. savings bonds and notes in any amount, you are subject to these requirements.  When in doubt, contact your employment labor counsel to determine whether you fit these requirements because this is just one aspect of many that you need to be following under the umbrella of this Executive Order, including creating yearly Affirmative Action Plans for females, minorities, disabled individuals and veterans.  Strict compliance is key in order to not risk losing your valuable federal government contracts.

Harris v. Quinn: Unions and Politicians Beware!

Contributed by Larry Smith

In 2003, then Governor, now inmate, Rod Blagojevich, issued an Executive Order declaring that 20,000 rehabilitation home health care aides paid through Medicaid were employees of the State of Illinois.  The workers, including plaintiff Pam Harris, were actually hired by individual Medicaid recipients and did not receive payment from the State of Illinois.  Prior to the Executive Order, Illinois law treated these healthcare workers as employees of the Medicaid patients.

As state employees, the workers could unionize. Service Employees International Union (SEIU) unionized the workers.  SEIU also designates that part of the union dues goes to “political causes.”  Pam Harris’ suit alleges that this support of “political causes” violates freedom of speech and due process.

On October 1, 2013, the U.S. Supreme Court agreed to rule on the case of Harris v. Quinn after the District Court dismissed the plaintiff’s Complaint and the Seventh Circuit affirmed the dismissal.

In the Seventh Circuit’s dismissal, it stated that: “as the personal assistants are employees of the state, at least in those respects relevant to collective bargaining, the union’s collection and use of fair share fees is permitted by the Supreme Court’s mandatory union fee jurisprudence.”

Unions, and the politicians they contribute to, are justifiably worried about the outcome in Harris, since the Supreme Court recently used the First Amendment to take a pro‑business stance in another public sector union case (Knox v. SEIU).

For those further interested, a similar case is pending in Minnesota (Parrish v. Dayton).  The Minnesota case involves an attempt to unionize childcare workers. 

Stay tuned for further developments.  It will be interesting to see if the U.S. Supreme Court continues to diminish the unions’ political clout.